Inadmissibility Based on a Criminal Record Involving Marijuana

As laws around the world continue to evolve when it comes to the legality of marijuana use it can be confusing how a criminal conviction related to marijuana might impact an individual’s visa application for the United States. Despite permissive medical, and even recreational, use in a growing number of US states, at the Federal level marijuana use in any manner is still illegal. As such, any prior convictions related to marijuana may affect admissibility to the US.

According to US immigration law, anyone who has been convicted of, or admits to “a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance,” is inadmissible. It is important to note that even if the offense was committed in a US state or foreign country where marijuana use is legal, because it is considered a controlled substance under US Federal law, the individual is still subject to this provision.

Furthermore, a conviction stands regardless of whether the individual received a suspended sentence, probation, community service, or had a mitigated sentence. In general, all convictions must be disclosed in an individual’s visa application regardless of how long ago the offense occurred or whether it has been “wiped” from their criminal record (for example, the conviction was expunged). However, a conviction that has been vacated is not considered a conviction for immigration purposes as long as the offense was vacated for substantive reasons and not for the purpose of avoiding immigration implications.

For visa applicants in the United Kingdom it is important to understand that “cautions” are treated as convictions under US immigration law, and that the Rehabilitation of Offenders Act does not apply to US immigration law meaning that all prior convictions must still be disclosed.

Waivers of Inadmissibility

So what happens if an individual has a prior conviction involving marijuana – can they ever be granted a US visa? The good news is that depending on the applicant’s circumstances there might be relief in the form of a waiver of inadmissibility.

For immigrant applicants, a waiver is only available if the conviction was for simple possession of 30 grams or less of marijuana. A waiver may be granted in one of two situations. First, if it can be shown that a US citizen or LPR spouse, parent, or child would suffer extreme hardship if the applicant was refused a waiver. Alternatively, a waiver may be granted if the offense occurred more than 15 years ago, it can be demonstrated that the applicant has since been “rehabilitated”, and his or her admission to the US would not pose a safety risk.

For non-immigrant applicants, a waiver may be granted for controlled substance violations after a favourable consideration of the following factors:

• The recency and seriousness of the offense;
• The reasons for the proposed travel to the United States; and
• The positive or negative effect of the planned travel on US public interests.

It is worth noting that in the event a non-immigrant applicant has been convicted of a more serious controlled substance offence, such as trafficking, the same three factors will be considered but with heightened scrutiny. According to US immigration law, the term trafficking is broadly construed and includes possession with the intent to sell.

Juvenile Offenses

If an individual was convicted of, cautioned for, or admitted to a controlled substance violation that occurred prior to turning 18 they are not automatically considered inadmissible as long as the offense related to simple possession or use of marijuana. If the offense was for trafficking (including intent to sell), importing/exporting, or manufacturing, then the applicant is inadmissible no matter his or her age at the time of the offense. In this situation, a non-immigrant waiver may be applied for based on the above mentioned factors.

Inadmissibility on Medical Grounds

Although it is not the topic of this post, individuals with a history of multiple drug related offenses may also be referred for a medical exam and ultimately found to be inadmissible based on a panel physician’s assessment that the applicant is a drug abuser or addict.

— Rikkilee Moser, Associate Attorney

If you would like advice regarding your criminal convictions or need assistance applying for a waiver of inadmissibility, please email rikkilee@flynnhodkinson.com.